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A few notes about this piece with @espinsegall. We lead off with a point about originalism, which is that the framers would not approve of courts interfering as deeply in our politics as they do. And so, in a sense, the originalist debates over the meaning of this or that ... 1/ https://twitter.com/espinsegall/status/1322537035266183168
... piece of constitutional text is a nice bit of point-missing. Even if you think you can pinpoint the original public meaning of some term (you usually can't, at least not with the level of certainty that would merit displacing the preferences of actual living voters) ... 2/
... the framers wouldn't want courts mucking about in political decisions unless there is an irreconcilable variance between the constitution and a law. And how often does that happen, if we're honest about it? 3/
Originalists would doubtless reply that the framers' intent doesn't matter; that what matters is the OPM. Yeah, the justifications for that are weak too -- the constitution is not a contract. But this is a point on which originalists are either misunderstanding the appeal of...4/
...their own theory, or trying to obscure it. To the extent originalism appeals to the general public, it's not b/c of some arid concept of original public meaning, but because of the perception that the approach is faithful to our constitutional structure as the framers ...5/
...envisioned it. And @espinsegall's point, and mine, is that that isn't true. So that's point #1. The second point of the essay is to propose a way out of this anti-originalist mode of judicial review into which the U.S. has devolved, slid, blundered, been lured ... 6/
...apply whatever label you prefer. Eric and I argue for one way of re-setting the balance between constitutionalism and democracy: we argue that Congress and the President should cut back on federal courts' jurisdiction. That is, Congress and the President should ... /7
...identify policies on which the people, and not the courts, will have the final say. Policies w/r/t which the constitution does not speak. And so anything judges have to say will come from their political preferences, and not from the constitution. 8/
Like healthcare reform. The constitution didn't say whether we could have an insurance mandate, and it doesn't say anything about a public option either. If Congress passes a strengthened ACA, it should remove federal courts' jurisdiction to review that statute. 9/
I think it's time we recognize that constitutional law, such as it has developed in the U.S., is less about the constitution than about empowering judges to make decisions for us based mostly on their political preferences but framed as ... 10/
...airy projections and theories that claim some fidelity to the constitution (its text, purposes, or history) but are really about as "faithful" to the constitution as geocentric models of cosmology are to the actual physical universe. 11/
The Aristotelian cosmology analogy to American constitutional law is actually pretty useful. Like geocentric cosmology, American con law occupies some of the sharpest minds of our age in a fruitless search for truth. 12/
In some ways, American con law is worse, b/c at least the Aristotelian model was subject to correction. Most con law arguments are, in contrast, non-falsifiable. 13/
Take John Roberts' execrable opinion in Shelby v. Holder, where a bare 5-4 majority of the Supreme Court struck down the coverage formula determining which jurisdictions must obtain pre-clearance from the fed'l gov't before changing voting rules and procedures. 14/
That formula, Roberts said, was invalid b/c it was based on data more than four decades old re which jurisdictions were likely to engage in race-bias in elections. And we'd gotten so much better on race, and so that formula was now an impermissible burden on ... 15/
... the equal sovereignty of the states. Re: Roberts' optimism on race, the voter-suppression conduct since the Shelby decision of many of the states that fell within the coverage formula make pretty clear that John Roberts' opinions on our supposed evolution on race ... 16/
... are worth approximately zero. But more to the point, where does this principle of the "equal sovereignty of the states" come from? And what is its domain? It's not in the constitution. And some states did fight a civil war against others. The losers put in place a ... 17/
... system of race hierarchy that the Voting Rights Act meant to dismantle. Are those states entitled to "equal sovereignty" after they got their asses kicked and yet persisted in their apartheid policies? Roberts doesn't say. 18/
The bottom line is this: there is *no* interpretive methodology that makes aggressive judicial review tolerable in a democracy, like ours, that has an old, terse, and very-difficult-to-amend constitution. 19/
The idea that originalism provides fidelity and constrains judicial discretion is laughable. But the same is true of living constitutionalism, textualism, "translation," or whatever other method you propose. The problem is constitutionalism. 20/
And that is the ultimate point of the essay. The only kind of constitutionalism that works in a democracy is one which interferes in political decisions only where there is an "irreconcilable variance" between the constitution's plain text and a law. 21/
Some may refer to this view as "neo-Thayerian." I prefer another label: it is "liberal anti-constitutionalism." Not because I don't believe the constitution has a role. But because I believe that ... 22/
... in the enterprise of democratic constitutionalism, the constitution -- and especially judicial review -- should be decidedly the junior partner. 22/
I shouldn't end without thanking the good people at @NYUJLPP for their quick, efficient, expert editing work on this piece. We are grateful! /end
